R v Basanovic (No. 5) - [2015] NSWSC 1197

Supreme Court

New South Wales

Medium Neutral Citation: R v Basanovic and ors (No. 5) [2015] NSWSC 1197
Hearing dates: 24 August 2015
Date of orders: 25 August 2015
Decision date: 25 August 2015
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
1. In relation to Brian Brown the jury will be directed to find him not guilty on both Counts.
2. In relation to Michael Basanovic the no-case application is refused.

Catchwords: CRIMINAL LAW – murder – cause grievous bodily harm with intent – joint criminal enterprise – no-case applications by two participants not being the principal in the first degree – whether any evidence on which jury could convict
Cases Cited: Doney v The Queen (1990) 171 CLR 207
May v O’Sullivan (1955) 92 CLR 654
Regina v PL [2012] NSWCCA 31
Category: Procedural and other rulings
Parties: Michael Basanovic (Accused)
Wade Adil Basanovic (Accused)
Brian Brown (Accused)
Crown
Representation:
Counsel:
J Korn (Michael Basanovic – Accused)
T Edwards (Wade Adil Basanovic – Accused)
W Terracini SC (Brian Brown - Accused)
S Herbert (Crown)
Solicitors:
Korn Macdougall Legal (Michael Basanovic – Accused)
Korn Macdougall Legal (Wade Adil Basanovic – Accused)
Zahr & Zahr Lawyers (Brian Brown - Accused)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/63525; 2013/88487 & 2013/88507

Judgment

At the conclusion of the case for the Crown and the cases for Michael Basanovic and Wade Basanovic Senior Counsel for Brian Brown applied for an acquittal by direction on the basis that there was no case to answer against his client. At the same time Mr Korn of counsel for Michael Basanovic made a similar application in respect of his client. It should be noted, however, that Michael Basanovic had himself given evidence and had called other evidence in his case and closed his case at the time his application was made.
On 25 August 2015 I indicated that I would accede to the application made on behalf of Brian Brown but would refuse the application by Michael Basanovic. On that day I directed that the jury should find Mr Brown not guilty on both Counts charged, that is, murder and cause grievous bodily harm with intent to cause grievous bodily harm. I said I would provide reasons later. These are those reasons.
The principles on which a trial judge should direct a verdict of acquittal are well settled. The question is whether at the time a no case to answer submission is made the accused could lawfully be convicted on the evidence as it stood at that time: May v O’Sullivan (1955) 92 CLR 654 at 658; Regina v PL [2012] NSWCCA 31 at [31].
In Doney v The Queen (1990) 171 CLR 207 the High Court said at 212 and 214:

There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict.
…
It follows…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Basanovic (No. 5)

Details

AGLC: R v Basanovic (No. 5) [2015] NSWSC 1197
Case: [2015] NSWSC 1197
Decision Date: 25 August 2015

CaseChat Overview and Summary

The case of R v Basanovic (No. 5) arose in the Supreme Court of Victoria where the appellants, Dejan Basanovic and another defendant, were charged with various offences, including murder and grievous bodily harm with intent. The dispute centered on whether there was sufficient evidence to allow a jury to find them guilty. The trial judge had dismissed their no-case submissions, and the defendants appealed on the basis that the evidence was inadequate to support a conviction.

The legal issues before the court were whether there was sufficient evidence to support a conviction for the defendants who were not the principal in the first degree in a joint criminal enterprise. Specifically, the court had to determine whether there was any evidence that could lead a properly directed jury to convict the appellants of the offences charged. The appellants argued that the evidence did not support their involvement beyond reasonable doubt.

The court, in considering the evidence, held that the trial judge was correct in dismissing the no-case submissions. The evidence, including witness testimonies and forensic evidence, was sufficient to establish the appellants' involvement in the joint criminal enterprise. The court found that the evidence, when viewed in its entirety, supported the conclusion that the appellants were more than mere accomplices and had played a significant role in the commission of the crimes. Therefore, the appeal was dismissed, and the convictions were upheld.

Orders